Intervention, Prevention and Punishment: Authenticity and capacity in mandated treatment.

The workshop will identify and explore the theories used to support a range of mandated medico-legal interventions such as involuntary detention, compulsory treatment and mandated alcohol rehabilitation. It will identify opportunities for improving the operation of these interventions, and provide recommendations for policy and legal practice that strengthen current policies to support impaired individuals while protecting the public.

The workshop brings social science theories on authenticity and capacity to bear on a major policy and regulatory problem: mandated medico-legal interventions for people with alcohol and other drug addictions, mental illness, or cognitive impairments. By drawing together academics, practitioners and policymakers, the workshop aims to identify and explore the ways that different conceptions about ‘proper’ and ‘authentic’ subjects are used to justify coercive medico-legal interventions such as involuntary detention, compulsory treatment and mandated alcohol rehabilitation. In doing so, the workshop will produce recommendations for policy and legal practice that strengthen and improve existing mechanisms in this highly contested and critical area.

There are a wide range of mandated medico-legal interventions in Australia that target marginalised and vulnerable populations. These include:

Drug courts and mental health lists, which can enforce treatment and service referrals for persons with addictions or mental illnesses who commit non-serious offences;

Guardianship laws, which enable guardian advocates to make medical, legal and lifestyle decisions for adults with disabilities who lack decision-making capacity;

Compulsory treatment and involuntary detention orders for people with mental illness or intellectual disabilities who require treatment to prevent harm to themselves or others; and

Mandatory alcohol rehabilitation for ‘problem drinkers’ who require support to overcome their problematic use of alcohol.

Each of these interventions are underpinned by assumptions about authenticity and capacity, and the actions and behaviours of ‘authentic’ and ‘proper’ subjects. Many of the above interventions are justified on the basis that the subject of the treatment order lacks the capacity to make decisions in their own best interests, or is simply ‘not themselves’ at the time, and therefore requires intervention in order to be returned to a state of ‘authentic’ and productive selfhood.

Yet interpretations of a person’s authentic and proper self, and understandings of the relationship between authenticity and capacity, vary widely between different medico-legal interventions. These include ‘duplicitous’ addicts who cannot be trusted, people with mental illness who are ‘not themselves’, and people with intellectual disabilities whose diagnosis and capacity are ‘unchanging’. These different configurations of authentic and proper selfhood enable a variety of legal and political responses, including mandated treatment, preventative detention and punishment. Mandated alcohol and drug rehabilitation, for example, is presented as one of the only pathways towards returning ‘addicts’ to their authentic selves. It is often justified as a way of providing much needed support for individuals who have developed ‘irrational’ and ‘disordered’ thinking that makes them behave ‘out of character’ and prioritise drug use over other responsibilities such as work, relationships, and family. Yet when it comes to people with intellectual disabilities, whose selfhood is understood as unchanging and intrinsically linked to their limited decision making capacity, involuntary detention becomes an acceptable option. When the relationship between a person’s authenticity and capacity is understood as being in flux, as it is for people with episodic mental illness, then temporary periods of coercive treatment and/or involuntary detention can be justified on the grounds of returning an individual to their proper state of being. These individuals should have the opportunity to make an advanced statement outlining their preferences for coercive care while they are ‘still themselves’, as is the case under recent mental health law reform in Victoria. The relationship between authenticity and capacity is, therefore, often inconsistently applied between different medico-legal interventions. Its status as a means by which to justify such intrusions into the lives of vulnerable populations is also questionable or at least unclear.

There is an urgent need for an empirically grounded and theoretically transparent analysis of the ways in which authenticity and capacity are conceptualised in mandated interventions applied to vulnerable populations. While social and political scientists have examined what it means to be a ‘proper’ subject in society, and raised concerns about the way authenticity and capacity are used in relation to people exepriencing alcohol and other drug addiction, mental illness, intellectual disability and cognitive impairments, this work has rarely been brought to bear in any analysis of mandated medico-legal interventions.

This workshop brings together major scholars, policymakers and practitioners working in these areas to explore policy and law reform opportunities including: two ASSA Fellows, several Directors of leading national research centres and programs, leading national legal professionals (e.g. Queens Council, Manager of Office of the Public Advocate, Magistrate of the Victorian Drug Court), one current ARC Future Fellow, one current ARC DECRA Fellow (CI Carter) and outstanding Australian Early Career Researchers (including CIs Seear and Spivakovsky, both ECRs of the year [2015] in their respective faculties at Monash University).

Our aim is to identify how these concepts are used to justify mandated interventions, to examine opportunities for improving the operation of these interventions, and to produce a set of recommendations for policy and legal practice that will strengthen and improve existing mechanisms in ways that do not undermine the rights of those affected by them. Contrasting how mandated laws operate or are justified in these different contexts will allow us to develop more effective and appropriate policies and law.

Main Themes:

The main themes covered at the workshop include:

Understandings of the relationship between ‘authenticity’ and ‘capacity’ in the context of legally mandated interventions.

Understandings of the relationship between ‘authenticity’ and recovery.

The use of neuroscientific methods to determine an individual’s decision-making capacity.